Summary: Mrs X complained the Council has not made reasonable allowances for Disability Related Expenses for her son. We found fault with the Council’s rationale of declining a Disability Related Expense for Cetaphil. We did not find fault with the Council’s other decisions but are aware new evidence is now available to Mrs X. The Council agreed to reconsider its decision about declining a Disability Related Expense for Cetaphil. The Council also agreed to write to Mrs X to detail what evidence it needs so it can reconsider other Disability Related Expense requests.

The complaint

1. Mrs X complained the Council has not made reasonable allowances for Disability Related Expenses for her son.
2. Mrs X says this matter is causing her son to accrue debts and is causing her stress and worry.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mrs X and the Council had the opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Law and Guidance

Financial assessments and Disability Related Expenses

8. The Care Act 2014 (‘the Act’) introduced a requirement that local authorities should promote ‘wellbeing’ and signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. (Care and Support Statutory Guidance, Chapter 1), (‘The Guidance’)
9. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
10. The Guidance sets out what should be considered a Disability Related Expense (DRE) under Annex C. The list includes:
• any heating costs, or metered costs of water, above the average levels for the area and housing type;
• special clothing or footwear, for example, where this needs to be specially made; or additional wear and tear to clothing and footwear caused by disability;
• reasonable costs of basic garden maintenance, cleaning, or domestic help, if necessitated by the individual’s disability and not met by social services
• purchase, maintenance, and repair of disability-related equipment;
• personal assistance costs, including any household or other necessary costs arising for the person;
• other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of DLA or PIP, if in payment and available for these costs. In some cases, it may be reasonable for a council not to take account of claimed transport costs – if, for example, a suitable, cheaper form of transport, for example, council-provided transport to day centres is available, but has not been used. (The Guidance, paragraph 40)
11. The Guidance also says the following:
• It may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost.
• The above list “… is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.” (The Guidance, paragraph 40)
• That a person’s care plan “… may be a good starting point for considering what is necessary disability-related expense. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.” (The Guidance, paragraph 41)

MIG

12. The (Charging and Assessment of Resources) Regulations 2014 outlines a person is entitled to minimum income guarantee (MIG) which is the minimum amount they must be left with after any contributions towards their care and support.
13. Section 78 Care Act 2014 outlines the secretary of state may provide guidance as part of its function. This includes updating the minimum income guarantee levels.
14. For 2024 to 2025, the time period relating to Ms X’s complaint, a person who is agreed over 25 and is in receipt of Disability and Enhanced disability premiums, is entitled to a MIG of £183.25 per week.

Council’s disability-related expenditure booklet and procedure for reviewing and appealing financial assessment decisions

15. The Council’s booklet on financial assessments and disability related expenses refers to the government legislation and guidance.
16. The Council’s booklet says that in general it will consider awarding a disability related expense when:
• The extra cost is needed to meet a person’s specific need due to a medical condition or disability (as identified in the person’s care and support assessment);
• The cost is reasonable and can be evidenced; and
• It is not reasonable for a lower cost, or free alternative, service or item to be used.
17. The Council has a policy for reviews and appeals of adult social care financial assessments. The Council says that a person can request a review if they believe the Council is charging too much for their care.
18. The end point of the Council’s review process if for a matter to be considered at panel. The Council’s policy says it will review an appeal request at panel and provide the outcome of the panel decision within 14 days of the panel meeting.

What happened

19. The Council completed a care assessment of Mrs X’s son, who I shall call Mr Z, and confirmed he had eligible care needs. The Council confirmed Mr Z had the following care needs:
• Manage and maintaining nutrition through prompts to eat food and support to order food online and dispose of food;
• Maintain personal hygiene through prompts to shower, brush teeth, wash hair and completion of laundry;
• Managing toilet needs but only partially;
• Being appropriately clothed but only partially;
• Making use of the home safely but only partially;
• Maintaining a habitable home as he cannot do this without support;
• Developing and maintaining family or other relationships as he cannot see his mum or children unless they visit him and his mum helps him look after his children;
• Make use of necessary facilities in the local community as he cannot access these independently;
• Carrying out caring responsibilities he has for his children because he cannot do this without support.
20. On 17 May 2024, the Council wrote to Mrs X to details Mr Z’s contribution towards his non-residential care charges. The Council confirmed it had assessed Mr Z’s contributions from 13 April 2024 as £119.13 each week and detailed its calculations.
21. The Council detailed that it had accepted DREs for weekly travel costs, child maintenance, cost of mobility scooter, shopping delivery charges, alarm costs and weekly costs of travel for hospital and GP appointments. The Council also provided a DRE for an annual fee for Community Connexions.
22. The Council did not allow DREs for the following:
• X-box and TV costs – the Council said this was a personal expense incurred by anyone who uses these items and were not specific to a disability related need.
• Cannabis/smoking – the Council noted it had allowed this to the possibility of the NHS prescribing medical cannabis.
• Extra costs related to children – the Council noted it had not allowed this because it was normal costs associated having children incurred by all parents.
• Cetaphil costs – the Council noted Mr Z could request this through prescription with the NHS.
• Weekly costs to parents – It had allowed some expenses in this respect but the remaining £8.33 is normal for all parents. The Council noted it had already allowed a shopping delivery cost and Mr Z’s care and support plan did not cover personal meal deliveries.
23. On 24 May 2024, Mr Z’s social worker sought reconsideration of the Council’s financial assessment at panel.
24. The Council took the appeal request to panel who reconsidered the rejected the DREs:
• X-box and TV – Following discussions the panel maintained this was an expense everyone would incur at the same rate regardless of disability.
• Cannabis/smoking – The Council said it originally decided that Mr Z could get a prescription through the NHS for this. However, the Panel considered that Mr Z had gone privately for this which could justify a DRE. The Panel decided it could not provide a DRE for this in its current format because the prescription evidenced was not in Mr Z’s name and there was conflicting medical information about its suitability.
• Transport costs to see children – The panel noted that transport costs to see children are not related to Mr Z’s disability.
• Other transport costs – The panel noted that Mr Z already gets PIP which is fundamentally what Mr Z should use to cover costs of transport. The Council did not have evidence of Mr Z’s transports costs exceeding his PIP award.
• Food delivery – The panel noted it had already awarded a DRE for this.
25. On 16 July 2024, the Council wrote to Mrs X and advised it had increased his contribution to £135.30 following consideration at panel. The Council said this was because it had removed transport costs as PIP should cover these costs.
26. Mrs X made a complaint to the Council on 24 July 2024. Mrs X said the Council had not suitability explained its rationale for not allowing DREs. Mrs X told the Council:
• Cetaphil was not available on prescription;
• The reasons why she considered Mr Z needed the transport costs,;
• That her costs to deliver food to her son amounted to £25 each week;
• Mr Z needed use of the X-box and TV for stimulation and dexterity; and
• The prescription for Cannabis was not available to Mr Z through the NHS.
27. Mrs X provided new information she had from the previous Council, from 2017, to this Council about what the previous council allowed as DREs.
28. On 1 August 2024, the Council provided a response to Mrs X’s complaint advising it had considered these DREs at panel already. The Council directed Mrs X to the Local Government and Social Care Ombudsman.

Analysis

29. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
30. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
31. The dispute in Mrs X’s complaint is over application of suitable DREs to Mr Z’s financial assessment. When considering if a cost is a DRE, the Council must consider any reasonable additional costs directly related to a person’s disability. The Council should consider each request and apply consistent rationale based on the individual merits of each cost.

X-box and TV costs

32. While the previous Council allowed a DRE for this in 2017, this does not mean that this council has to apply the same.
33. The Council has shown consistent rationale to the X-box and TV costs for Mr Z. The Council has shown its consideration that this is a personal expense and not specific to Mr Z’s disability or needs. This is a merits decision by the Council which follows the relevant guidance and legislation. The Ombudsman cannot dispute the Council’s decision making in such circumstances.

Extra travel costs related to children

34. The Council decided not to allow this cost because it considered this a normal cost applicable to everyone who has children.
35. Again, the Council has made a merits decision these are normal costs applicable to every parent. The Council decided these costs do not specifically relate to Mr Z’s disability. Similar to the X-box and TV costs, the Council can refuse to classify certain activities as a DRE. The Council has made this decision because these activities are chosen by the person and costs associated with this would exist notwithstanding a disability need.
36. I cannot find fault with the Council’s decision.

Reduction in transport DRE to Hospital/GP and other support appointments

37. The Council has removed previous transport costs it allowed as a DRE totalling £16.17. The Council did this because it considered Mr Z’s mobility element of his PIP should cover his transport costs.
38. The guidance states that transport costs necessitated by illness or disability should be considered a DRE when these are over and above the mobility component of PIP.
39. The Council has shown its calculations that Mr Z’s travel expenses come out less than his PIP based on the evidence available to the Council. The Council’s decision these expenses should be covered by Mr Z’s PIP is consistent with the legislation and guidance. I cannot find fault with the Council’s decision making.
40. The Council can reconsider this decision if Mr Z, or Mrs X, can show that Mr X’s travel expenses amount to more than his PIP.

Food delivery costs

41. Mr Z’s care and support plan details that Mr X needs support in ordering food online and for delivery of this food. The care and support plan also confirms that Mr X can use a microwave to heat meals.
42. The care and support plan is specific that Mr X needs help with food delivery costs. The Council has already included a shopping delivery cost of £0.81 each week for Mr X to cover this cost based on the evidence available to it. The Council has acted correctly and I cannot find fault. The Council has advised it will reconsider this DRE if Mrs X can provide evidence the food delivery cost is higher than this.
43. Mrs X has advised she prepares meals for Mr Z and brings them to him each week. Mr Z’s care and support plan does not include reference a personal meal plan or the need for Mr Z to have his parents prepare and batch cook meals for him. While this is undoubtedly beneficial to Mr Z, this does not justify application of a DRE for this service. I cannot find fault with the Council rejecting a DRE for this cost.

Cannabis

44. The Council declined Mrs X’s original request for medicinal cannabis because it said Mr Z could get a prescription for this through the NHS rather than as a private medical arrangement. However, on reconsideration at panel it said it could not justify a DRE for this request because the medical information was conflicting and the prescription was not in Mr Z’s name. The Council made this decision based on information provided by 24 May 2024.
45. Mrs X has provided evidence to the Ombudsman from Mr Z’s private medical clinic and his GP. This information is from December 2024. The information from the private medical clinic confirms that Mr Z has had a prescription with it since 17 June 2024. The information from Mr Z’s GP confirms Mr Z could not get a prescription through the NHS for medicinal cannabis. The GP also says they would “recommend that he continues to buy it privately” if this is helping him.
46. The care and support plan statutory guidance says Council’s should consider costs of any privately arranged care service required as a DRE provided these are not reasonably available at a lesser cost.
47. When the Council assessed this as a DRE for Mr Z, it did not have evidence of a prescription in his name. This is supported by the private clinic only confirming the prescription started on 17 June 2024. The Council was also unaware that Mr Z could not get this for free through the NHS. As such, there is no fault in the Council’s decision.
48. Based on the current evidence, the Council should reconsider its decision not to award a DRE for Mr Z’s medicinal cannabis. The Ombudsman cannot say if the Council should now provide a DRE for medicinal cannabis but, rather, the evidence available has significantly changed enough for the Council to reconsider its decision.

Cetaphil cream

49. The Council declined a DRE for Cetaphil because it said Mr Z could get a prescription for this cream which would therefore mean this is available at a lower cost.
50. A council can reject a DRE request if a lower cost alternative is available. However, Cetaphil is not available as a prescription through the NHS.
51. The Council has advised Mrs X did not tell it that Cetaphil was not available as a prescription on the NHS. This is incorrect as Mrs X did tell the Council this on 24 July 2024. While this was after the panel considered Mr Z’s DRE, the Council should have reconsidered its decision based on this information provided on 24 July 2024 which showed a flaw in its rationale. This was fault.
52. It is also of note that Cetaphil not being available as a prescription through the NHS is also information readily available to the Council without being informed this by a person. The Council did not take any steps to verify if this medication was available as a prescription through the NHS before rejecting a DRE on these grounds. This was fault.
53. The Council should reconsider the request for a DRE for Cetaphil on the basis that this is not available as a prescription through the NHS.

Other new information

54. Mrs X has told the Ombudsman that Mr Z has experienced a recent increase in his utility bills and scooter costs. This is new information and was not applicable to the consideration by the Council early in 2024. This would not be fault by the Council but should be considered as part of any review of Mr X’s DREs.

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Agreed action

55. Within one month of the Ombudsman’s final decision the Council should:
• Reconsider the request for a DRE for Cetaphil in the knowledge this is not available as a prescription through the NHS.
• Write to Mrs X to confirm that it can reconsider Mr Z’s DREs on receipt of evidence of his travel expenses, food delivery costs from online food orders, medicinal cannabis prescription, increased scooter costs and increased utility costs. The Council should confirm in this letter what specific information it needs from Mrs X to help support its decision making.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman